Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: De AnnButts v. LIRC and Labor Temple Coop Association, Case 07 CV 1353 (Wis. Cir. Ct., Marathon Co., April 28, 2008)

Digest Codes: VL 1005.01  VL 1080.20

The employee worked as an assistant cook for the employer, a labor temple bar/restaurant overseen by a 15-member volunteer board of directors. The employee quit her employment without notice, following several instances of sexual harassment by one of the members of the board of directors. She only complained to the lead cook, who told the employee she had not relayed the employee’s complaint further because she did not know how to do so. The employee did not tell anyone in management about the harassment, even though there were at least two individuals in management (the chairman of the board of directors (who was the employee’s supervisor) and the employer’s building manager) whom the employee felt comfortable with. The commission held that the employee’s failure to have informed anyone in management about the harassment, precluded a finding that the employee’s quit was with good cause attributable to the employer, because the Wis. Stat. § 108.04(7)(b) requirement that the employer know or have reason to know of the sexual harassment, was not satisfied.

Held:  Affirmed. First, the court gave great weight deference to the commission’s decision. Second, the court rejected the employee’s use of decisions interpreting the Wisconsin Fair Employment Act (where employer knowledge is not a prerequisite to a finding of liability for sexual harassment). The court noted that the fair employment laws and the unemployment insurance laws are separate, with different purposes, and that decisions from outside the unemployment insurance laws are not binding in unemployment cases (§ 108.101). The court also referred to the § 108.04(7)(b) requirements that the employer know of the harassment and fail to timely correct it, holding that there was no evidence the employer knew or had reason to know of the harassment. Third, the court rejected the employee’s argument that she had informed a supervisor (the lead worker); the lead worker was not a supervisor, and the employee knew the lead worker had not relayed the employee’s complaint to anyone who actually was in management. Finally, the court held that the knowledge requirement had to be met notwithstanding that the sexual harasser was a member of the employer’s board of directors. The employee’s supervisor was the chairman of the board, and the employee got along with him. The employee also could have approached the building manager, who could be expected to have dealt with the matter himself or to have relayed the employee’s complaint to the chairman of the board


[LIRC decision]

Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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